Why the NFL’s Concussion Settlement Appeal Withdrawal Isn’t Good News

Part I

A hearing to decide the fate of the one of two paths of qualification for monetary awards in the oft-heralded but largely problematic NFL Concussion Settlement was scheduled for January 10. On January 9, it was cancelled and announced that the NFL had withdrawn the appeal that prompted the hearing. Co-Lead Class Counsel Chris Seeger proclaimed victory over the NFL and its “meritless appeal,” but in reality, the NFL got everything it asked for and more, so there’s pause to consider if someone was behind a curtain and how things sometimes are not what they appear to be.

For almost two years, the NFL has opposed awards to players based on a generally consistent standard of diagnosis for dementia when compared with the settlement engineered BAP standard. Early in the claims submission and evaluation process most claimants had been diagnosed with varying degrees of neurological problems by independent doctors of their own choosing; some with the assistance of their attorneys. Though this provision was specifically bargained for in the settlement, and players were encouraged to be examined prior to the settlement effective date, the NFL sought to discredit as many those exams that resulted in dementia claims as possible. In August 2017 attorney Patrick Tighe who represents about 90 retired players attempted to bring the fact that pre-effective date claims were being evaluated under the rigid and difficult to qualify for BAP standard, rather than the appropriate generally consistent standard designated for pre-effective date claims. His motions and those of attorneys joining with him were dismissed. By March 2018 Locks Law Firm, who serves as class counsel, filed a motion stating that the settlement “was in danger of failing its execution.” Locks and all that joined with him also found their motions dismissed without as much as a hearing on the matter. Judge Brody ordered any filings related to claims administration to be done outside the public docket.

As settlement approved Monetary Award Fund (MAF) doctors began conducting examinations and found players impaired, their diagnoses, which also fall under the “generally consistent” standard have come under fire.

The NFL has claimed massive fraud and pushed to have a special investigator with power granted to subpoena and depose those they suspected of misconduct, but as many plaintiffs attorneys have suggested, despite the NFL’s best efforts to deter, delay, and see claims denied, over $600 million in awards have been approved, and the NFL is now experiencing buyers’ remorse in regard to the settlement.

I’ve contacted numerous attorneys since the hearing was cancelled and have tried to sort through the information shared and opinions offered. By necessity, those who spoke with me did so under conditions of anonymity. A few attorneys seemed cautiously optimistic of the withdrawn appeal while most found it alarming and expressed concern that an already difficult process was about to become nearly impossible.

My own evaluation raises numerous doubts as to its future benefit to the class of retired players. The order is a scant two paragraphs, but a great deal is packed into those paragraphs if you look closely. Let’s do some unpacking.

“The stay of payment of these seven claims awards is lifted.”

The single piece of undisputable good news is that seven claims that have been mercilessly tied up have finally been released for payment. This means for seven suffering men, the nightmare of uncertainty is finally over. What the future holds for others is far from clear.

“The NFL has withdrawn its appeal…”

I felt it was highly unusual for an appellant who has contested an issue for nearly two years and then filed a scorched earth objection/appeal to a decision by special masters and requested a hearing on the same to withdraw the appeal on the eve of the hearing. To make sure I was reading this correctly, I sent an inquiry to University of Georgia Law Professor Elizabeth Chamblee Burch, who has done extensive research on the intricacies of multidistrict litigation. She, too, found it “odd.”

The best analogy seems to be the situation in lawsuits when a plaintiff seeks dismissal of his case. When he seeks dismissal without prejudice, he typically wants to preserve his legal rights and tighten up his case so that the lawsuit can be refiled in the future.

If he moves for dismissal with prejudice, it’s a near certainty that a confidential settlement has been achieved as a result of negotiation. There really isn’t another valid reason that I can think of for a plaintiff to willingly forfeit his rights and walk away from the table with no compensation or resolution.

Because this appeal (or objection) was filed against a determination by the settlement’s special master, the process for dismissal is a bit different, as Professor Burch explained, but similar principles come into play. There doesn’t seem to be a valid reason for an appellant to voluntarily drop an appeal unless a negotiated result has been achieved.

“I would imagine that they hammered out a deal behind closed doors,” Professor Burch said, “[it] would be great to know what they received in return.” I agree. It’s very unusual for a judge to issue a substantive ruling for a withdrawn appeal. I believe the fact that she did further supports a negotiated arrangement that was reflected in her ruling.

I emailed Co-Lead Class Counsel Chris Seeger, seeking an answer.

He didn’t respond. He did issue a public statement that was picked up by several media outlets.

“Our advocacy on behalf of former players will continue to ensure they receive every benefit under this agreement, and that the NFL pays every dollar for which they are obligated.”

While I didn’t attempt to contact the NFL, all media who did have reported that they did not respond to their inquiries.

“In reviewing the papers and exhibits submitted by all interested parties…”

Its unclear what parties were included in the documents reviewed by Judge Brody. Last Friday a motion was submitted by attorney Steven Marks of Podhurst Orseck requesting an opportunity to speak at the scheduled hearing. He expressed concern that his brief wasn’t included in the official filing placed on the pubic docket with the judge’s order scheduling the hearing.

As Marks stated, all briefing related to the appeal (and administration of claims generally) has taken place off the public docket. While this seems to be typical of MDLs, I find the use of a shadow docket troubling. Instead of presenting a clear picture to the parties involved as well as the public, information is hidden and outside the claims administrator, co-lead class counsel, and NFL counsel, it’s hard for anyone to be certain of what has or hasn’t been filed or argued.

Many attorneys have expressed concern in that they feel their voices have been suppressed. No attorneys representing individual players have been given opportunity to address the court in a public hearing, or even have their motions filed on a public docket.

Mr. Marks is designated as class counsel, yet he was unsure if his brief was presented to the court. Since Judge Brody—the only party permitted to file publicly regarding claims issues—did not include his brief in her exhibits, Marks was left to wonder if she’d even seen it, despite the fact it contained vital information regarding his clients. It’s also highly probable that many lawyers representing players were not even aware the appeal, and the one regarding mandatory versus discretionary use of AAP if their clients weren’t directly impacted even though the outcomes of the appeals will affect their clients. Only the attorneys whose claims were among those challenged were notified of the NFL’s challenges, and even then, the NFL filed its first complaint in June and attorneys representing individual players were not made aware until the end of August.

As Marks pointed out, the stated reason for the non-public filings is confidentiality of sensitive information. This, however, as he also states, can easily accomplished through document redaction.

“… the Court reviewed a number of reports and certifications submitted by Qualified MAF Physicians that failed to set forth the doctor’s analysis as to why the diagnosis of Level 1.5 Neurocognitive Impairment (i.e., early dementia) or Level 2 Neurocognitive Impairment (i.e., moderate dementia) was ‘generally consistent’ with the BAP diagnostic criteria.”

The flip side of Judge Brody’s statement is that many others did, although this was not a requirement, nor even mentioned in the settlement or even the manual provided to doctors. Advocacy for Fairness in Sports obtained a copy of the MAF Physicians Manual well over a year ago, and while doctors are told their methods of evaluation must be “generally consistent” with BAP protocols which are fully presented in the manual, they were not instructed to elaborate on why their methodology and diagnosis was generally consistent. Perhaps it’s time to make the manual public so that the reader can see for himself.

Advocacy for Fairness in sports has reviewed numerous claim packages submitted as confidential background information, and from the examples I’ve been able to evaluate, unless the testing and scoring have been identical to the BAP, the NFL has appealed and sought to discredit the diagnoses rendered by the board certified neurologists who physically evaluated the retired players. They’ve used social media posts and photos captured in an apparent moment of clarity, indications that a player may drive or work in a limited capacity, or rigid academic reviews that can’t possibly take into consideration the nuances of a disease as complex as dementia. The NFL seems to be back to its old tricks of peddling questionable if not overtly deceptive research.

The NFL should be reading Miranda to doctors because it seems everything they say can and will be used against them.

For the first time, I’ve been given permission to share some redacted portions of doctor’s defense of his diagnosis to an AAP supported NFL appeal. The player, whom I’ll refer to as Player Doe was examined by a MAF physician whom I’ll reference as Dr. Roe. Player Doe was approved, and his award was appealed by the NFL. It was sent to the special master who consulted an AAPC neuropsychologist from the AAP panel. The unidentified neuropsychologist is an academic who has never examined the player and doesn’t work in a clinical setting, but nevertheless found it appropriate to discredit the work of a board-certified neurologist from a major teaching hospital. The NFL has loudly complained that it hasn’t had the opportunity to properly vet and train MAF physicians. It seems apparent they have accomplished that task with the APP who interprets “generally consistent” as identical to the BAP in line with the NFL’s position.

Unfortunately, while Dr. Roe, is highly trained in use of the CDR scale and its application to the BAP equivalencies that don’t exist outside the settlement and in normal medical practice, his transcriptionist wasn’t sure how to equate the two and made some clerical errors. The AAP seized the opportunity to eviscerate the neurologist in their report.

Dr. Roe explained the error, but unfortunately had no opportunity to do so before the player’s claim was denied. While the claims administrator, special masters, and AAP are permitted to contact MAF doctors if they have questions, no one contacted Dr. Roe. His response was filed as an exhibit to a post-appeal objection.

Because not only the clerical error was attacked, but the entirety of his diagnosis, Dr. Roe further clarified his position in a second declaration. One of the major points in the attack by both the NFL and AAP focused on the fact Player Doe was able to drive.

The doctor went so far as to equate the AAP’s conduct as “not consistent with ethical medical conduct.”

Dr. Roe elaborated on the dilemma doctors face regarding limiting driving for patients with dementia and how prematurely revoking driving privilege can be harmful to the patient. (I’m personally aware of a number of retired players who suffer from dementia but continue to drive. They tend to get lost frequently, but as with many areas of long-term conditioning, recall how to operate a vehicle.)

He asserts that “the wanton actions of the AAP disregard the needs of these injured players and would inevitably preclude these injured players from receiving necessary medical care.”

He equates the AAP’s behavior equivalent to that of medical malpractice.

Dr. Roe then discusses ongoing research, and the growing body of knowledge regarding the effects of sports related brain injury. He addresses the role chronic mental problems and/or drug addiction may play since this has been a sticking point for the NFL and AAP as a reason to assign dementia causation to these factors rather than neurological impairment, while at the same time, much evidence exists to believe instead, that these may be symptoms of the brain injury itself. He portrays the AAP position as “prejudicial and adverse” to brain injured patients.

Speaks for itself:

Dr. Roe concluded his statement with a review of his methodology, contextual history of the patient, a review of the scientific method and how he uses it in making his diagnoses and how he weighs factors such as drug use, mental illness. He also swears under penalty of perjury that he stands behind his evaluation.

The attorney representing “Player Doe” expressed his belief that “generally consistent” is the equivalent for normal mainstream medical practice as opposed to an artificially crafted BAP standard which imposes rigid numbers with no deviation to permit assessment of the true state of a player’s health or room for a physician to make a judgment call.

The NFL has emphasized only three domains of a six domain CDR scale, knowing that in examining the domains which are generally the last ones to be affected they will be able to delay diagnoses and in doing so, reduce their payments to the players. Unfortunately, these delays cause immense suffering and as Dr. Roe stated, prevent the injured from receiving care that could improve their quality of life.

“In reviewing the papers and exhibits submitted by all interested parties, the Court reviewed a number of reports and certifications submitted by Qualified MAF Physicians that failed to set forth the doctor’s analysis as to why the diagnosis of Level 1.5 Neurocognitive Impairment (i.e., early dementia) or Level 2 Neurocognitive Impairment (i.e., moderate dementia) was “generally consistent” with the BAP diagnostic criteria.”

Dr. Roe did this to no avail. Player Doe’s fate now rest on an objection to the Special Master’s final determination based on the opinion of an AAP neuropsychologist who felt he understood the player’s condition better than his neurologist.

“The Court directs the Claims Administrator to develop for review and approval by the Court a clarification of the existing Rules Governing Qualified MAF Physicians. The clarification should require that Qualified MAF Physicians who make a Qualifying Diagnosis of Level 1.5 Neurocognitive Impairment or Level 2 Neurocognitive Impairment by deviating from the BAP testing protocols or diagnostic criteria provide a written description in their reports as to why, in such doctor’s medical judgment, the evaluation and evidence is ‘generally consistent’ with the BAP diagnostic criteria.”

I find this portion of the order extremely problematic on several fronts.

First, a claims administrator—not a doctor—will be making a determination as to what medical criteria might be necessary for a diagnosis. Under the existing “generally consistent” standard, doctors are given broader latitude for a diagnosis that incorporates the totality of a player’s mental and neurological condition. Since this is most likely beyond the realm of the claims administrator’s expertise, he’ll probably ask for some help from the party designated by the settlement to assist the special master and claims administrator with complex medical issues. That party, of course is the AAP.